108 Mo. 18 | Mo. | 1891
This is the second appeal by defendant in this case. 95 Mo. 286. This record presents substantially the same facts that the former record presented, except that plaintiff offered no evidence as to whether or not the railroad embankment at the point of the accident was within the line of Main street of the
On a retrial the court gave the following instruction at the instance of the plaintiff: “The court instructs the jury that, although the deceased Guenther was guilty of negligence in walking upon defendant’s track, yet if the jury believe from the evidence that while so upon the track said Guenther became in imminent peril of being struck by the defendant’s train, and the defendant’s employes in charge of said train became aware of his peril of being struck, in time to have enabled them, by the exercise of ordinary care, to stop said train, and to have averted the injury to said deceased, or if the jury believe . that said employes, by the exercise of ordinary care, could have become aware of his peril in time to have done so; and that they failed to exercise such care and stop said train, and that by reason of the failure to stop said train the said Guenther was struck and killed, then the jury should find for plaintiff. If the jury find a verdict for the plaintiff they will assess the damages at the sum of $5,000. Under the law the verdict, if for the plaintiff, cannot be for a larger or smaller sum.”
The defendant asked and the court gave the following: “If the jury find from the evidence that the deceased, Jacob Guenther, stepped upon the western track of the defendant’s railway just before the accident, in front of a passenger train approaching thereon from the north, and that he could have seen or heard said, train if he had looked or listened, and that he went on said track without looking or listening for the same, and was struck by said train, then the verdict should be for the defendant, unless the jury further find from the evidence that said train could have been stopped by the employes of defendant in charge of said train by the exercise of ordinary care and prudence in time to
These instructions presented the issues of fact to the jury in strict accordance with the principles announced by this court on the former appeal in this case, and every question now pressed for consideration was fully answered then.
In LeMay v. Railroad, 105 Mo. 361, decided by division number 1 of this court June 29, 1891, Sherwood, C.. J., speaking for that division said: “If the
deceased and others had for a long space of time by the tacit permission of the defendant company been accustomed to use the track of the defendant’s road for the purpose of towing sand boats, then he was not a trespasser -within the meaning of the statute, and this case, is, therefore, brought within the principle announced in Williams v. Railroad, 96 Mo. 275, and cases cited.”
The LeMay case and the former opinion in the case át bar are decisive of every question now before the court, and the j udgment is, therefore, affirmed.